The Source for Art & Law

Can Art Serve Two Masters? On Art and Advertising

A few days ago we posted an entry highlighting a recent article by our friend, Megan Carpenter, on whether or not the Playboy Marfa installation, in Marfa, Texas (obviously), is in fact an art work or advertising.

The Texas Department of Transportation (“TDoT”) has now classified both the Playboy Marfa and the Prada Marfa installations as outdoor advertising. The TDoT argues that the logo is defined by state and federal law as a sign. And because the “sign” sits on land bordering federal highway U.S. 90 and lacks a permit, it violates the 1965 Highway Beautification Act signed by president Lyndon B. Johnson.

According to Carpenter, the “TxDoT regulations define an ‘Outdoor advertising sign’ as ‘an outdoor sign, display, light, device, figure, painting, message, plaque, placard, poster, billboard, logo or symbol, or other thing which is designed, intended, or used to advertise or inform, if any part of the advertising or information contents is visible from the main-traveled way of a regulated highway.’”

Under this definition of “sign,” it seems that both the Playboy Marfa and the Prada Marfa projects run afoul of this regulation and thus would have to obtain a license or be removed. An interesting issue in both these cases is whether the consent received by the artists from the trademark owners of Prada and Playboy will affect the reading of whether these projects are art or advertising (or both, in which case they’re still ultimately advertising). Playboy commissioned artist, Richard Phillips, and paid for the Playboy Marfa project, and apparently Prada’s chairwoman, Miuccia Prada, not only authorized Elmgreen and Dragset to use Prada’s logo, but also selected the merchandise exhibited within Prada Marfa.

The TDoT instructed Playboy to remove Playboy Marfa earlier this summer. Its 45-day removal deadline has passed, and the TDoT is currently figuring out what to do with Prada Marfa.

This entry was posted
on Tuesday, September 17th, 2013 at 11:14 am and is filed under Art Law, Feature, Free Speech, Property, Trademark.
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